JUDGMENT :

R. VIJAYAKUMAR, J.

Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree, dated 26.02.2021 passed in A.S. No. 236 of 2017 on the file of the Sub Court, Thiruchendur reversing the judgment and decree, dated 23.01.2015 passed in O.S. No. 87 of 2012 on the file of the District Munsif Court, Srivaikundam.

1. The plaintiff is the appellant herein.

2. The plaintiff filed O.S. No. 87 of 2012 before the District Munsif Court, Srivaikundam, for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit schedule properties. The suit was decreed by the trial Court. The defendant filed A.S. No. 236 of 2017 before the Sub Court, Thiruchendur. The learned Subordinate Judge was pleased to allow the appeal and dismiss the suit. As against the same, the plaintiff has filed the above Second Appeal.

3. The plaintiff has contended that the suit schedule properties originally belonged to his father Pitchandi and he died intestate. After his death, the property devolved upon the plaintiff and his sister Deivakani. His sister Deivakani was married off with jewels and other materials and hence she has given up her right in the suit schedule properties. Hence, the plaintiff is the absolute owner of the suit schedule properties. According to the plaintiff, the defendant's property is located on the Western side. The plaintiff had applied for building plan permission under Exhibit A3 on 02.06.2000 for the construction of a compound wall on the Northern side of his property and he had completed the said construction. According to the plaintiff, the houses of both the plaintiff and the defendant are facing Northwards. The plaintiff has further contended that the husband of the defendant had disturbed the possession of the plaintiff in the year 2007. Hence, the plaintiff issued a legal notice under Exhibit A6 on 09.05.2008. For the said legal notice, the defendant's husband sent a reply notice on 26.05.2008 under Exhibit A7. As per the said reply notice, the defendant has alleged that the plaintiff has encroached upon 2 feet into the property of the defendant and has put up a compound wall. Thereafter on 10.06.2012, when the defendant attempted to interfere with the possession of the property, the plaintiff is constrained to file the present suit.

4. The defendant filed a written statement contending that the plaintiff's house is located on the Western side and the defendant's house is located on the Eastern side and both the houses are facing Northwards. According to the defendant, the plaintiff has encroached upon the defendant's property for an extent of 2½ feet on the Western side of the defendant's property. The defendant further contended that the plaintiff had encroached upon 2 feet into the defendant's property and constructed a North-South Wall in the year 2008. Though a reply notice was sent by her husband under Exhibit A7, for removal of the same, so far the defendant has not removed the said North-South Wall. Hence, the contentions of the plaintiff about the disturbance of his possession are not factually correct.

5. The trial Court relied upon the deposition of DW-1 to arrive at a finding that the defendant has admitted the title of the plaintiff with regard to the house property and the dispute is only relating to the vacant site on the Eastern side of the plaintiff's property. The defendant has also admitted in her cross-examination that the plaintiff has constructed a compound wall after obtaining permission from the Panchayat. The defendant had also deposed that they have also put up a compound wall on their Western side in the year 1999. Based upon the deposition of DW-1, the trial Court arrived at a finding that there is a compound wall separating the plaintiff and the defendant's property and the defendant is making a claim of 2½ feet beyond the compound wall into the plaintiff's property. Based upon the said findings,